DEREK MIKOLAJ v REGISTRAR OF MOTOR VEHICLES (SA) [2025] SASC 83

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (SENIOR MEMBER MCEVOY) 2023/SA003260 [2024] SACAT 27 Appellant: DEREK MIKOLAJ Counsel: MR C KUMMEROW - Solicitor: ILES SELLEY LAWYERS Respondent: REGISTRAR OF MOTOR VEHICLES (SA) Counsel: MR M MILBURN - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 16/08/2024 File No/s: CIV-24-003615 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. MIKOLAJ v REGISTRAR OF MOTOR VEHICLES [2025] SASC 83 Judgment of the Honourable Justice McDonald 29 May 2025 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL This is an appeal against a decision of a Senior Member of the South Australian Civil and Administrative Tribunal made on 15 March 2015 to affirm a decision made by the Registrar of Motor Vehicles to cancel the appellant’s Motor Driver Instructor Licence (MDI Licence) pursuant to s 98A(7) of the Motor Vehicles Act 1959 (SA). This decision was affirmed by way of internal review on 28 September 2023. The appellant brings this appeal, by way of rehearing, pursuant to s 71(1(b) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (SACAT Act) and r 212.2(1)(b) of the Uniform Civil Rules 2020 (SA). Pursuant to s 71(2) of the SACAT Act the appellant seeks leave to appeal the decision of the Tribunal. The appellant seeks leave to appeal on the grounds that the appeal is reasonably arguable, is of sufficient substance to justify consideration and that it is in the interests of justice. In advancing that submission, the appellant contends that leave to appeal should be granted as the decision of the Tribunal has the practical effect of prohibiting the appellant from working as a driving instructor, an occupation which he has engaged in for some time, that the regulation of those issued with an instructor’s licence is a matter of public importance in assessing whether someone is fit to hold a licence and that it is of public importance to ensure that the Tribunal properly discharges its statutory function of supervising the manner in which the Registrar of Motor Vehicles performs its tasks. The respondent does not contest the issue of leave to appeal. The appellant appeals the SACAT decision on seven grounds namely; that the decision to cancel the appellant’s licence was unreasonable and unjust and that the Tribunal was in error in concluding that the appellant was unfit to hold an MDI Licence. The appellant further contends that the Tribunal erred in failing to reconsider the whole of the evidence, as at the date of the decision, by way of rehearing, failed to have material consideration to expert opinions regarding the appellant’s prospects of rehabilitation and failed to have regard to possible sanctions other than cancellation, namely a limited licence suspension or the imposition of conditions upon the appellant’s MDI Licence. The -- 1 of 29 -- appellant also submits that the Tribunal occasioned a denial of procedural fairness in failing to proceed on the factual basis agreed between the parties. The respondent contends that there has been no appealable error by the Tribunal in the exercise of its discretion and subsequently submits that this Court should affirm the decision of the Tribunal to cancel the appellant’s MDI Licence. Held; leave to appeal granted: 1. The appeal is dismissed. 2. The appellant has not demonstrated any arguable error of principle, denial of procedural fairness, other vitiating error or manifest injustice. 3. The parties are to be heard in relation to costs. Motor Vehicles Act 1959 (SA) s 98A, s 98(2), s 98A(2)(c), s 98A(2)(aa), s 98A(7), s 98Z; South Australian Civil and Administrative Tribunal Act 2013 (SA) (SA) s 34, s 34(1), s 34(3), s 34(4), s 71(1)(b), s 71(2), referred to. Jackson v Lepp Investments (2016) 125 SASR 1; Pix v South Australian Housing Trust (2016) 125 SASR 10; Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259; Craig v Medical Board of South Australia (2001) 79 SASR 545; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; lass v Registrar of Motor Vehicles [2023] SACAT 4; Mikolaj v Registrar of Motor Vehicles [2024] SACAT 27, applied. Re Collins and Estate Agents Board (1994) 7 VAR 394; Commissioner for Consumer Affairs v Capponi [2004] SADC 169; Commissioner for Consumer Affairs v Kilsby [2004] SADC 179; Sobey v Commercial Agents Board (1970) 22 SASR 70; D’Orazio v Registrar of Firearms [2018] SACAT 15; Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387; Commissioner for Consumer Affairs v McCurdy [2004] SADC 174; Commissioner for Consumer Affairs v Marley- Duncan [2019] SADC 154; Commissioner for Business and Consumer Affairs v Peter Burkett Real Estate Pty Ltd [2013] SADC 131; Hughes and Vale Pty Ltd v State of New South Wales (No 2 [1995] HCA 28, considered. -- 2 of 29 -- MIKOLAJ v REGISTRAR OF MOTOR VEHICLES [2025] SASC 83 Civil: Single Judge Appeal McDONALD J. 1 This is an appeal against a decision of a Senior Member of the South Australian Civil and Administrative Tribunal (‘the Tribunal’) made on 15 March 2024. The decision was to affirm a decision made by the Registrar of Motor Vehicles (‘the Registrar’) on 12 May 2023, to cancel the appellant’s Motor Driver Instructor Licence (‘MDI licence’) pursuant to s 98A(7) of the Motor Vehicles Act 1959 (SA) (‘the Motor Vehicles Act’). The original decision had already been affirmed on an internal review on 28 September 2023. An MDI licence 2 The Registrar’s power to issue an MDI licence is provided by s 98A of the Motor Vehicles Act. An MDI licence is a licence to teach another person to drive for fee or reward.1 3 An MDI licence holder is distinguishable from an Authorised Examiner. An Authorised Examiner is a person appointed by the Registrar (who may also be an MDI licence holder) who conducts a practical assessment as to whether an applicant for a driver’s licence meets the standard necessary to be issued with a certificate of competency to obtain a driver’s licence.2 4 An MDI does not perform any form of statutory testing and does not issue any certificates of competency. Generally, an MDI teaches driving skills in preparation for an Authorised Examiner to perform a form of assessment on driving competency. Background 5 The appellant’s MDI licence was cancelled on 19 May 2023. Prior to that, the appellant had held an MDI licence for approximately 16 years. During that period, he had been the subject of three complaints. These complaints were made in November 2018, February 2022 and October 2022.3 The latter two complaints were the basis upon which the Registrar made the decision to cancel the appellant’s MDI licence. 1 The term “Motor Driver Instructor Licence” is not defined in the Motor Vehicles Act 1959 (SA). This definition was agreed upon by the parties. FDN 9, Agreed Facts Between Appellant and Respondent at [6]. 2 Motor Vehicles Act 1959 (SA) s 5(1). 3 FDN 9, Agreed Facts Between Appellant and Respondent. Note: South Australian Civil and Administrative Tribunal decision references complaints being 10 November 2018, 24 April 2021, 3 April 2022. The latter two dates are incorrect. -- 3 of 29 -- [2025] SASC 83 McDonald J 2 The November 2018 complaint 6 The first complaint was made by a 17 year old male who was undertaking driving lessons with the appellant. In the course of a lesson, the appellant referred to the steering wheel as a “pair of knickers”, saying “first you pull them down, then you shove it up”; and “sometimes you’ll pull the knickers down and she’ll say no, so you don’t need a second hand”. The appellant also commented “as a teenage boy, you would think about sex and girls a lot wouldn’t you”; “I’m a dirty old man, how much do you think that I think about sex”; and “I think about sex all of the time”. 7 A complaint was made to the police and the Registrar about these comments. In a letter to the Deputy Registrar about this incident, the appellant acknowledged that he had made a mistake in the way that he had spoken to the student and said that he was remorseful, had learnt from the experience and said that it would never happen again. As a consequence, the appellant received a police caution, and in August 2019 the Registrar, satisfied that the appellant was guilty of conduct making him unfit to hold an MDI licence, suspended his licence for three months. The April 2021 complaint 8 In April 2021, a complaint was made by Ms B, a woman, from a non-English speaking background aged about 40, who had undertaken six driving lessons with the appellant. 9 The first lesson took place on 24 April 2021. At the commencement of that lesson the appellant opened the driver’s door, bent under the driver’s seat, in which Ms B was sitting, and adjusted the steering wheel column whilst kneeling on the road. In doing so, the appellant invaded Ms B’s personal space in an inappropriate and unprofessional manner. 10 The appellant accepted the allegations and admitted that he did not sufficiently turn his mind to Ms B’s need for personal space, or the possibility that he might inadvertently touch her. 11 On 27 April 2021, Ms B had a second driving lesson with the appellant. In the course of the lesson the appellant told her to “stop, look for your boyfriend” when stopping at a stop sign or a red light, and to “kiss” when turning at a roundabout. Ms B alleged that the appellant tapped her hand on the steering wheel and said, “well done”. 12 The appellant admitted that he had made these comments to Ms B but justified them on the basis that he employed a communication style designed to capture the students’ attention. When he made reference to “looking for your boyfriend”, he did so to alert the student to look for risks when stationary at an intersection or roundabout. He said he used the word “kiss” in the context of students needing to come close to the kerb when navigating a roundabout. -- 4 of 29 -- [2025] SASC 83 McDonald J 3 13 The appellant acknowledged that what he had said could be misconstrued and that he should not speak in such a way. The appellant could not recall if he had touched Ms B’s hand, but said that from time to time driving instructors need to touch the hand of a student to direct their attention or to avoid danger. 14 Ms B had a further driving lesson with the appellant on 28 April 2021. She said that on this occasion the appellant again touched her hand and used the same terms as he had used during the driving lesson on 27 April 2021. 15 Ms B’s next driving lesson took place on 29 April 2021. She said that on this occasion, as she drove over some speed bumps, the appellant said, “boom boom”, and commented to her “you like boom boom don’t you”? 16 The appellant agreed that he made these comments and accepted that they were inappropriate, however, said that they were not intended to have any sexualised purpose, and explained that they were misguided attempts at humour. 17 Ms B had a fifth driving lesson with the appellant on 4 May 2021. That lesson was uneventful. 18 Ms B’s final driving lesson with the appellant took place on 5 May 2021. On this occasion, whilst practising parking in a parking bay, Ms B looked to her right and the appellant, without warning or permission, grabbed the top of her head and turned her head to face him. The appellant admitted to putting his hand on top of Ms B’s head and turning her to look in the right direction. He said that this was a practice that he had undertaken in the past. 19 Ms B reported the appellant’s conduct to the police. The appellant provided his version of events, and the police took no further action. 20 On 9 February 2022, the Registrar wrote to the appellant to advise him of the allegations made by Ms B and to put him on notice that consideration was being given as to whether to cancel or suspend his licence. The October 2022 complaint 21 In October 2022, a complaint was made by Ms Z, a female student who was under the age of 18, who had three driving lessons with the appellant. 22 Ms Z’s first driving lesson took place on 3 April 2022. At the outset of this lesson, the appellant told Ms Z that the photograph on her learner’s licence was “nice” and asked her if she had a boyfriend. Throughout the lesson the appellant constantly referred to a “boyfriend” and said that he was looking for a girlfriend, but not to tell his wife. During the course of the lesson, the appellant, without notice, touched Ms Z’s hands whilst they were on the steering wheel. 23 The appellant did not deny that he had made these comments, but said that they were a poor attempt at humour and building rapport, however understood that -- 5 of 29 -- [2025] SASC 83 McDonald J 4 they were inappropriate. The appellant did not recall that he had touched Ms Z’s hands, but said that if there had been any touching it was uneventful. 24 Of note, this incident was two months after the appellant had been put on notice that the Registrar was considering cancelling or suspending his MDI licence as a result of the complaint made by Ms B. 25 Ms Z had a second driving lesson with the appellant on 19 April 2022. On this occasion, the appellant touched her hands on the steering wheel a number of times, whilst they were on a street with many roundabouts. He said to her that she “just wanted to keep stuffing up so she could keep playing handsies” with him. He made comments to Ms Z about looking for a boyfriend and told her to drive around the roundabout like she was kissing her boyfriend. 26 The appellant did not deny these allegations, but explained that he was correcting her driving technique by touching her hands and was attempting to use “relatable” language. In particular, the “handsies” comment was made in the context of teaching Ms Z the “push-pull” technique. He acknowledged that his language was misguided and ill-timed, and understood why Ms Z felt uncomfortable. 27 On 7 May 2022, the appellant gave Ms Z a free driving lesson which was also attended by Ms Z’s mother. Initially the mother sat in the back of the car but later took over driving, while the appellant remained in the instructor’s seat. During the course of this lesson, the appellant did not touch Ms Z or make any reference to a boyfriend. When Ms Z’s mother was driving, the appellant corrected her driving by using the instructor’s brake on his side of the car, and not by touching Ms Z’s mother. 28 On 20 October 2022, the Registrar wrote to the appellant to advise him of the new allegations made by Ms Z, and put him on notice that these allegations would be taken into account in determining whether to cancel or suspend his MDI licence. Psychological counselling 29 From 10 October 2022, the appellant attended counselling on five occasions with a forensic psychologist, Dr Loraine Lim. Each session ran for between one and a half to two hours. These counselling sessions related to the complaints made to the Registrar, and were to address the appellant’s teaching and communication style. Dr Lim was also asked to assess any risk that the appellant may pose if he continued to hold an MDI licence. 30 Dr Lim provided two reports that were taken into account, by both the Registrar and at SACAT, as part of the decision making process. Dr Lim’s first report was dated 19 January 2023 and was forwarded to the Registrar by way of email on 23 January 2023. -- 6 of 29 -- [2025] SASC 83 McDonald J 5 31 In that report, Dr Lim expressed the view that the appellant “is neither a sexual predator nor a person who is suffering from a severe personality disorder that predisposes him to antisocial or narcissistic conduct”.4 Dr Lim said that she did not believe that the appellant had a sexual interest in any of the complainants, rather his comments were misguided attempts to “develop rapport with his students, enhance their capacity to learn and retain information, and to become competent and vigilant road users”.5 32 Dr Lim also said that she did not believe that there was an appreciable risk of the appellant committing a sexual offence against a student, however noted “the concept of ‘zero risk’ does not exist”.6 She observed that over the course of their consultations, the appellant had developed good insight into the allegations and had developed greater awareness of his conduct. Dr Lim, however recommended that the appellant “engages in psychoeducation (e.g. cultural awareness programs) and intermittent professional coaching/counselling for as long as his MDI licence remains current, to support him and avoid another complaint by a student”.7 33 This report was taken into account by the Registrar in arriving at the original decision. 34 The second report provided by Dr Lim was dated 12 June 2023, and was taken into account on the internal review. The original decision 35 On 12 May 2023, the appellant was advised by the Registrar that pursuant to s 98A(7) of the Motor Vehicles Act, his MDI licence was to be cancelled, effective as of 19 May 2023. The Registrar provided detailed reasons for arriving at the decision. Of note, and relevant to the appellant’s arguments on this appeal, the Registrar accepted that none of the appellant’s misconduct was sexually motivated. 36 The Registrar expressly considered the suggestion made on behalf of the appellant, to impose conditions on his MDI licence rather than cancel it. The Registrar, however, concluded that given the seriousness of the conduct, and community expectations and concerns about this type of behaviour, the only appropriate outcome was to cancel the licence. The internal review 37 On 14 June 2023, the appellant’s solicitor wrote to the Registrar requesting an internal review of the original decision pursuant to s 98Z of the Motor Vehicles Act. 38 Amongst the material forwarded for that purpose was the addendum report prepared by Dr Lim on 12 June 2023. In that report Dr Lim provided clarification 4 Report of Dr Loraine Lim dated 19 January 2023 at 14. 5 Ibid at 15. 6 Ibid at 14. 7 Ibid at 15. -- 7 of 29 -- [2025] SASC 83 McDonald J 6 of the concept of “zero risk” that had been referred to in her earlier report. She explained:8 As I have explained in my original psychological report (dated 19/01/2023), the concept of “zero risk” does not exist, and of note, this would apply to everyone in the wider community. We are all at some risk of inadvertently or intentionally behaving in a way that crosses a legal boundary, such as driving over the speed limit, briefly parking in a loading zone to drop a parcel off for a friend for example, or the act of taking stationary from work home which could be constituted as theft. 39 Dr Lim went on to express the opinion that the appellant “is no more at risk of acting in a harmful manner to minors and the general public in comparison to an ordinary person living in the wider community, including employees of the Motor Registry”.9 40 On 28 September 2023, the appellant was advised that the outcome of the internal review was that the decision to find him guilty of conduct making him unfit to hold an MDI licence, and to cancel his MDI licence, was confirmed. The SACAT proceedings 41 The appellant subsequently sought a review of that decision under s 34(1) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘the SACAT Act’). Pursuant to s 98ZA of the Motor Vehicles Act, a person dissatisfied with a decision of the Registrar may seek a review of the decision by the Tribunal under s 34 of the SACAT Act. An application to review a decision comes within the Tribunal’s review jurisdiction and the Tribunal is required to examine the decision by way of a rehearing.10 It must reach the correct and preferable decision, having regard and giving appropriate weight to the decision of the original decision maker.11 Determining if the decision is correct entails being satisfied that the decision is made in accordance with applicable legal principles, including relevant legislative requirements. Determining if the decision is preferable entails a consideration of the possible alternative decisions that may have been open to the decision-maker, and which best advances the purposes and policies of the Motor Vehicles Act. 42 The Tribunal in conducting a review of a decision, and exercising those powers, is taken to be standing in the shoes of the original decision maker, but may also have regard to additional relevant evidence. The Tribunal on a review “may make any order the Tribunal considers appropriate”12 and the Tribunal’s decision on review is to be regarded as, and given effect as a decision of the original decision maker.13 8 Report of Dr Loraine Lim dated 12 June 2023 at 9-10. 9 Ibid at 10. 10 South Australian Civil and Administrative Tribunal Act 2013 (SA) s 34(3). 11 Ibid s 34(4). 12 Ibid s 37(1). 13 Ibid s 37(3). -- 8 of 29 -- [2025] SASC 83 McDonald J 7 43 On 15 March 2024, the Tribunal delivered a decision affirming the decision of the Registrar of motor vehicles. The appellant now seeks leave to appeal to this Court, the decision of the Tribunal pursuant to s 71(1)(b) of the SACAT Act. Leave to appeal the SACAT decision 44 Before turning to the merits of the various grounds of appeal, there is a preliminary issue of whether the appellant should be granted leave to appeal. The decision under review is that of an ordinary member of the Tribunal. An appeal against the Tribunal lies to the Supreme Court constituted of a single Judge in circumstances in which the Tribunal was constituted of an ordinary member.14 45 Section 71(2) of the SACAT Act provides that an appeal against a decision of the Tribunal is only by leave of the Supreme Court. 46 In Jackson v Lepp Investments Pty Ltd,15 Parker J summarised the governing principles upon which to determine whether to grant leave to appeal:16 In deciding whether to grant permission to appeal from SACAT to this Court I consider that the ordinary principles applied when the Court decides whether or not to grant permission for a civil appeal should be followed. The overriding principle is always the interests of justice. The ordinary approach is that permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration. A failure of the first-instance decision-maker to give adequate reasons will require the grant of permission. Because SACAT is a specialist tribunal with particular expertise in determining tenancy disputes, this Court must give substantial weight to its findings. For this proposition I rely on the decision of this Court in Legal Practitioners Conduct Board v Colton. (Footnotes omitted) 47 It is the appellant who must satisfy the Court that the appeal is reasonably arguable. It was submitted by counsel for the appellant that the subject of the appeal was of sufficient substance, and was at the very least, reasonably arguable. 48 The appellant submits that it is in the interest of justice that leave should be granted on the basis that the decision of the Tribunal has the practical effect of prohibiting the appellant from working as a driving instructor, an occupation that he had worked in for 16 years. It was further submitted that the regulation of those issued with a driving instructor’s licence is a matter of public importance and that there are no appellate level decisions specifically in relation to fitness and propriety under s 98A of the Motor Vehicles Act. Finally, the appellant relied on the need to not only ensure that only those who are fit and proper persons are issued instructor licences, but equally, that the power conferred by s 98A(7) of the Motor Vehicles Act is exercised appropriately. It was submitted that ensuring that the Tribunal 14 Ibid s 71(1)(b). 15 (2016) 125 SASR 1. 16 Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1 at [19]-[20]; cited with approval by Kourakis CJ in Pix v South Australian Housing Trust (2016) 125 SASR 10 at [3]. -- 9 of 29 -- [2025] SASC 83 McDonald J 8 properly discharges its statutory function of supervising the manner in which the Registrar carries out its duties, is a matter of public importance. 49 Whilst acknowledging that it is ultimately a matter for the Court, the respondent did not oppose the granting of leave. 50 In my view, there is force in the submissions made by the appellant in support of the grant of leave. I grant leave to appeal the decision. Nature of the appeal 51 This appeal is brought pursuant to s 71(1)(b) of the SACAT Act and r 212.2(1)(b) of the Uniform Civil Rules 2020 (SA).17 An appeal of this nature is by way of a rehearing.18 It is effectively a trial over again, on the evidence relied upon in the Tribunal, together with such additional evidence as may be received on appeal. The Court must independently review the evidence and carefully consider the findings made at first instance. Significantly, where the matter involves a question of judicial discretion, the Court is not entitled to substitute its own decision unless an error is identified in the exercise of that discretion. 52 Again, it must be factored in that the decision under consideration is that of an administrative decision maker. In the Federal Court decision of Collector of Customs v Pozzolanic Enterprises Pty Ltd,19 it was said that the Court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision maker.20 The Court continued on to say that “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.21 53 In Minister for Immigration and Ethnic Affairs v Wu Shan Liang,22 the High Court also considered the issue and observed: These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over- zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. (Footnotes omitted) The Motor Vehicles Act 1959 (SA) Licencing scheme for driving instructors 54 Before turning to consider the grounds of appeal, it is instructive to set out the framework created by the Motor Vehicles Act for the regulation and licencing of driving instructors. “Section 98A – Instructors’ licences” falls within Div 3 Pt 3A of the Motor Vehicles Act. Section 98A places a clear responsibility on the 17 As this is an appeal of a decision of a Presidential Member. 18 South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71(3a). 19 (1993) 43 FCR 280. 20 Ibid at 287. 21 Ibid. 22 (1996) 185 CLR 259 at 272. -- 10 of 29 -- [2025] SASC 83 McDonald J 9 Registrar to ensure that public safety is maintained by strictly controlling who is permitted to instruct members of the public on how to drive. Section 98A relevantly reads: (1) A person who is not the holder of a current motor driving instructor’s licence must not, for fee, reward, salary, wages or other remuneration or for any other consideration paid or payable by any person, teach any other person to drive a motor vehicle. Maximum penalty: $750. (2) If the Registrar is satisfied that an applicant for an instructor’s licence— (a) holds an unconditional licence and has, during the period of 5 years immediately preceding the application, held such a licence for 2 years or periods totalling 2 years (excluding, if the applicant has been disqualified from holding or obtaining a licence in this State, or from holding or obtaining an interstate licence in another State or Territory of the Commonwealth, any period preceding the period of disqualification); and (b) has, during the period of 5 years immediately preceding the application, held a driver’s licence in this State or elsewhere for 4 years or periods totalling 4 years (excluding, if the applicant has been disqualified from holding or obtaining such a licence in this State or elsewhere, any period preceding the period of disqualification); and (c) is a fit and proper person to hold an instructor’s licence; and (d) is proficient as a motor driving instructor, the Registrar must issue to the applicant an instructor’s licence in a form determined by the Minister. (2aa) An instructor’s licence may be issued subject to such conditions as the Registrar thinks fit. … (7) The Registrar may cancel any instructor’s licence or suspend any instructor’s licence for such term as the Registrar thinks fit if satisfied that the holder has been guilty of conduct making the holder unfit to hold such a licence. … 55 There are a number of observations to be made about this section. The first is that s 98A(1) creates a prohibition on any person (who does not hold an MDI licence) teaching another to drive for monetary reward. This reflects the legislative intent that holding such a licence is not an entitlement, but a privilege to be granted by the Registrar. Section 98A(2) sets out the criteria to be satisfied before the Registrar will issue an MDI licence. That criteria includes the requirement that the applicant “is a fit and proper person to hold an instructor’s licence”. Importantly, s 98A(2) mandates that the Registrar issues an MDI licence in circumstances in which the applicant satisfies the criteria. There is no discretion to decline to do so. In contrast, s 98A(7) creates a discretion on the Registrar to cancel or suspend an -- 11 of 29 -- [2025] SASC 83 McDonald J 10 MDI licence in the event that “the holder has been guilty of conduct making the holder unfit to hold such a licence”. 56 Section 98A(2aa) allows for an MDI licence to be issued subject to conditions determined by the Registrar. The “fit and proper person” test 57 It is well accepted that the purpose of any disciplinary proceedings is to protect the public, not to punish an individual in the sense in which punishment is administered under the criminal law. In Craig v Medical Board of South Australia,23 in the context of disciplinary proceedings against a psychiatrist, Doyle CJ explained: … A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession. In NSW Bar Association v Evatt (1968) 117 CLR 177, in a much cited passage, the High Court found that the conduct in question demonstrated that the practitioner was unfit to practise as a barrister, and then went on to say (at 183-184): The Supreme Court thought, moreover, that as the exercise of its disciplinary powers was, to some extent, a punishment for wrongdoing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved. This has already been pointed out by this Court in Clyne v NSW Bar Association (1960) 104 CLR 186 at 201, 202. The respondent’s failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser. Accordingly, the Supreme Court was, clearly, in error in deciding to suspend the respondent from practice rather than to disbar him, and it is the duty of this Court to correct that error. Apart from emphasising that the purpose of disciplinary proceedings is the protection of the public, and not punishment for wrongdoing, this passage makes the point that sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration. The protection of the public did not permit mercy to be shown in that case. 58 A disciplinary sanction also assists in upholding public trust and confidence in the profession, bringing home to the individual the seriousness of their conduct, deterring them from any further departures from appropriate standards, deterring other members of the profession from acting in a similar manner, and imposing 23 (2001) 79 SASR 545 at [41]-[43]. -- 12 of 29 -- [2025] SASC 83 McDonald J 11 restrictions on the individual’s right to engage in that work so as to ensure that the public is protected. 59 At the same time, the disciplinary action must be proportionate and appropriate in all of the circumstances of the case. 60 The term “fit and proper person” is a term commonly used in legislation regulating trades and professions. It takes its meaning from the context of the statutory scheme in which it appears. As explained by Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond:24 The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 61 In Ilas v Registrar of Motor Vehicles,25 consideration was given to this phrase by Senior Member Ward, in the context of an assessment of the fitness and propriety of a person to hold an MDI licence. In that decision, the Senior Member helpfully extrapolated from the authorities, the various legal principles relevant to a determination of this issue. These are:26 a. licensing legislation is primarily concerned with the protection of the public, deterrence of others, but not punishment of individuals;27 b. the concept of fitness and propriety extends to the three characteristics of honesty, knowledge and ability in the statutory context and qualifications relevant to the particular vocation;28 c. the onus of demonstrating fitness and propriety is on the applicant, (not on the decision-maker to disprove fitness and propriety);29 d. a person must show not only that they are possessed of a requisite knowledge of the duties and responsibilities devolving upon them as the holder of a particular licence but also that they are possessed of sufficient moral integrity and rectitude of character 24 (1990) 170 CLR 321 at 380. 25 [2023] SACAT 4. 26 Ibid at [33]. 27 Petracaro (n 9) at 390; Re Collins and Estate Agents Board (1994) 7 VAR 394 at 399, 400; Commissioner for Consumer Affairs v Capponi [2004] SADC 169 at [9]; McCurdy (n 9) at [20]; Commissioner for Consumer Affairs v Kilsby [2004] SADC 179 at [18] – [20]. 28 Petracaro (n 9) at [392]. 29 Sobey v Commercial Agents Board (‘Sobey’) (1979) 22 SASR 70 at 76; D’Orazio (n 3) at [28]. -- 13 of 29 -- [2025] SASC 83 McDonald J 12 as to permit them to be safely accredited to the public without further enquiry as a person to be entrusted with the sort of work which the licence entails;30 e. the very purpose of the words “fit and proper person” is to give the widest scope for judgment and indeed for rejection;31 f. consideration is to be given to whether the conduct of the person manifested qualities, or the absence thereof, incompatible with the carrying on of the relevant occupation, which qualities are essential for the carrying on of that occupation, and the conduct is to be assessed objectively in the context of the role and circumstances in which the person operates;32 g. the degree to which a person has done something which could reasonably be regarded as disgraceful or dishonourable by others in their licensed grouping is also a relevant consideration;33 h. previous relevant breaches of the law and any propensity towards offending are of crucial importance;34 and weight must be given to matters which are relevant and not peripheral to the vocation in issue.35 (Footnotes in original) 62 As I have mentioned, the notion of fitness and propriety is contextual. In determining the issue in respect of a MDI licence, an important consideration is that the licence holder’s students will commonly be in a relatively vulnerable position with respect to the instructor. There is an obvious power imbalance. The students may be children or at least young people, or they may be new migrants or others for whom obtaining a driver’s licence has significant consequences. There is also the fact that the student will be required to sit in a confined space in close proximity to the instructor, often for extended periods of time. In such circumstances, it is important that the community have confidence that those entrusted by the Registrar with this role, will not engage in conduct that places the student in a position in which they are left exposed to inappropriate conversation or behaviours. The community relies on the Registrar to act as a gatekeeper to protect the interests of those who need to learn how to drive. 63 The Department of Planning, Transport and Infrastructure also provides minimum standards for motor driving instructors under the Code of Conduct.36 These include standards for “Honesty and Integrity” and “Respect for Others”. These standards state the following: 30 Sobey (n 13) at 76; applied in a number of decisions including D’Orazio (n 3) at [27]; Commissioner for Consumer Affairs v Marley-Duncan (‘Marley-Duncan’) [2019] SADC 154 at [92] – [94]. Also, on the question of public confidence in the system, see Commissioner for Business and Consumer Affairs v Peter Burkett Real Estate Pty Ltd (‘Peter Burkett’) [2013] SADC 131 at [47]. 31 Hughes and Vale Pty Ltd v State of New South Wales (No. 2) [1955] HCA 28 at [9] in the judgment of Dixon CJ and McTiernan and Webb JJ. 32 Marley-Duncan (n 14) at [93] – [94]. 33 Re Collins and Estate Agents Board (1994) 7 VAR 394 at 400. 34 Sobey (n 13) at 75; Peter Burkett (n 14) at [47]. 35 Petracaro (n 9) at 392; McCurdy (n 9) at [20]. 36 Section 35 Book of Documents filed in SACAT proceedings at 57. -- 14 of 29 -- [2025] SASC 83 McDonald J 13 Standard 1 Honesty and Integrity 1.1 Motor Driving Instructor’s must act at all times with honesty and integrity and avoid any actions or situations which are inconsistent with their professional obligations or which could diminish public confidence in the driver trainer and assessor profession. Standard 2 Respect for Others … 2.2 There are general obligations on all individuals to abide by the laws enacted and accepted by society. A Motor Driving Instructor should not engage in any misconduct and at all times abide by the law in accordance with the expectations of society.37 Examples of misconduct that the Registrar, industry and community consider inappropriate include, but are not limited to, any sexual offences, or offences involving violence, intimidation or breaches of trust. 2.3 A Motor Driving Instructor should be respectful in their dealings with an applicant in connection with the provision of driver training including, but not limited to avoiding: a) use of abusive or threatening language; b) asking the applicant questions of a personal nature; c) making personal comments that could be considered sexual or intimidating; d) making sexual advances or requesting sexual favours; and e) contacting an applicant for other than business purposes by text message, email, phone or other means. 64 These minimum standards provide part of the context for the determination of whether a person is a fit and proper person to be an MDI. 65 The final observation about the test of fitness and propriety, is that it is forward looking. Whilst the catalyst for a licence suspension or cancellation may be misconduct, it is not the misconduct that leads to the consequences, but rather a determination that the person is unfit to hold such a licence moving into the future. Grounds of appeal 66 It is the appellant’s contention that the decision of the Tribunal was infected by both process and outcome errors. Ground 1 – deals with the purported outcome error. In those circumstances, it is convenient that I consider that ground after I have dealt with each of the grounds complaining of process errors. 37 Ibid. -- 15 of 29 -- [2025] SASC 83 McDonald J 14 Ground 2 – The Tribunal erred in concluding that the appellant was “guilty of conduct making [him] unfit” to hold an MDI licence within the meaning of s 98A(7) of the Motor Vehicles Act. Ground 3 – The Tribunal erred in concluding that the appellant is not a “fit and proper person” to hold an MDI licence within the meaning of s 98A(2)(c) of the Motor Vehicles Act. 67 The appellant dealt with these two grounds together and I propose to adopt the same course. 68 It was the appellant’s contention that grounds 2 and 3 are factually linked in that the error in ground 2 manifested in the error which is the subject of ground 3. 69 Central to both grounds, is the nature of the appellant’s conduct that resulted in the Registrar exercising his discretion under s 98A(7) of the Motor Vehicles Act and resulted in the Tribunal affirming the decision. 70 In summary, it was the appellant’s submission that his misconduct fell at the lower end of the scale of seriousness, and that there was no evidence impugning his honesty, required knowledge or requisite ability, and consequently it was not open to find him to not be a fit and proper person to hold an MDI licence. The Tribunal’s evaluation of the appellant’s conduct 71 Whilst it was the allegations made by Ms B and Ms Z that led to the Registrar considering the exercise of the discretion under s 98A(7) of the Motor Vehicles Act, those allegations had to be considered against the 2018 incident involving the male student. 72 In considering the appellant’s misconduct, the Tribunal noted that there was no issue that had been raised about the appellant’s honesty or appropriate professional knowledge. There was also no suggestion that the appellant had engaged in conduct that could reasonably be regarded by others as “disgraceful or dishonourable”, or that there were any other breaches of the law or a “propensity towards offending”.38 The Tribunal identified that the issue that was relevant to determining whether the appellant was fit and proper to hold an MDI licence was, “whether he manifested qualities incompatible with the carrying on of the relevant occupation where those qualities are essential to the carrying on of that occupation”.39 73 In considering the nature of the conduct engaged in by the appellant, the Tribunal found that “it is difficult to avoid interpreting the comments and actions 38 Mikolaj v Registrar of Motor Vehicles [2024] SACAT 27 (‘Tribunal’s Reasons’) at [59]; at [60] of the Tribunal’s Reasons filed together with the Notice of Appeal. There is a discrepancy between the paragraph numbers on the published version of the Tribunal’s Reasons and the Tribunal’s Reasons that were filed together with the Notice of Appeal in this Court. The pinpoint references of the published version [2024] SACAT 27 (‘Tribunal’s Reasons’) will be referred to. 39 Tribunal’s Reasons at [60]. -- 16 of 29 -- [2025] SASC 83 McDonald J 15 in a sexualised manner, even in the circumstances where Mr Mikolaj had no sexual interest in the complainants”.40 Further, the Tribunal found that whilst it is likely that a driving instructor may have a legitimate cause to touch a student’s hands, any physical contact should be accompanied by a warning or a prearranged understanding of consent.41 74 An important aspect of the Tribunal’s assessment of the appellant’s conduct was the vulnerability of the students and the imbalance of power. That vulnerability was described in the following terms:42 In my view it is clear that Mr Mikolaj’s pupils were vulnerable. Two of the three students who made complaints were not adults, and all Mr Mikolaj’s pupils were at a disadvantage as they wanted or needed a drivers licence and were dependent on him in this respect, and they were all in a confined and restricted space from which they could not easily exit, generally alone, and likely to be anxious about learning to drive. With many pupils there was likely a significant age difference to Mr Mikolaj, with many pupils likely under the age of 18. Mr Mikolaj was not in the same relationship to them as a schoolteacher is to students, or a medical practitioner to patients, but nevertheless this is a relationship where Mr Mikolaj as the adult instructor has disproportionate authority and power, and the pupils are in relatively vulnerable circumstances, and trust is a central matter. 75 The Tribunal correctly noted that the appellant’s conduct was also in breach of Departmental Standards under the MDI Code of Conduct, and demonstrated a lack of respect for the students. The Tribunal considered that the establishment of an effective learning environment, where trust and confidence in the instructor are paramount, is essential to the role of a driving instructor and observed “[r]espect for students, understanding of their vulnerability, an understanding of professional behaviour, insight into needs of students and the impact of the instructor’s conduct, are essential to professional and appropriate instruction”.43 76 On that basis, the Tribunal arrived at the view that the decision under review was both the correct and preferable decision as “it would not be consistent with the regulatory and protective purposes of the Motor Vehicles Act to permit a person engaging in such admitted conduct to continue to instruct vulnerable pupils. Both the regulatory and protective purposes of the Motor Vehicles Act must include both effective teaching and respect for pupils, such that they are not exposed to disrespectful and discomforting conduct by instructors”.44 77 During the course of submissions before the Tribunal and this Court, counsel for the appellant submitted that whilst the conduct demonstrated ill judgement and was unprofessional, inappropriate and problematic, it was not the appellant’s normal behaviour but a deviation from it. It was submitted that this was reflected 40 Ibid at [61]. In the Tribunal’s Reasons filed with the Notice of Appeal, the sentence reads that “it is impossible to avoid interpreting the comments and actions in a sexualised manner”. 41 Ibid at [65]. 42 Ibid at [69]. In the Tribunal’s Reasons filed with the Notice of Appeal, the concluding phrase “and trust is a central matter” is not stated. 43 Ibid at [73]. 44 Ibid at [79]. -- 17 of 29 -- [2025] SASC 83 McDonald J 16 by the fact that the appellant had only ever had three complaints made against him (which fell to the lower end of the scale), and by the number and nature of the character references that had been tendered. 78 There were references from 3 former students, 2 parents of former students and a colleague, who were supportive of the appellant’s good character and reputation.45 In a number of the references, mention was made of the appellant’s use of humour to create a more relaxed atmosphere in the car. In one of the references, a former student observed:46 The issue, in my opinion, is that some people might find his humour odd or peculiar, but others would find it humorous, as I do. However, I firmly believe that his humour, along with the fact that it is simple to laugh and feel at ease, makes the whole experience enjoyable. 79 Generally, the references attest to former students having found the appellant to be an effective driving instructor. 80 It was submitted that in taking all of these matters into account, the Tribunal erred in the objective assessment of the scale of seriousness of the conduct, which was the basis of the Tribunal finding that the appellant was not a fit or proper person to hold an MDI licence. In particular, in circumstances in which the conduct in question was being used for a legitimate teaching purpose, to assist the appellant in demonstrating correct and safe driving techniques. 81 In support of this submission, counsel for the appellant drew comparisons between the appellant’s conduct and the conduct of other driving instructors who have been the subject of an application to have their MDI licence cancelled. One of the authorities referred to by the appellant in that context was Ilas v Registrar of Motor Vehicles.47 In that matter the applicant had sought a review of the decision of the Registrar to cancel his licence as a driving instructor. The basis of the licence cancellation were allegations of serious sexual misconduct by the applicant towards three students. The allegations included uninvited sexual contact, at least some of which resulted in the laying of criminal charges. In such circumstances, it was an unsurprising outcome that the Tribunal affirmed the original decision of the Registrar to cancel the licence. 82 It is not however, merely a matter of other MDI’s having behaved in a more inappropriate manner than the appellant, rather, the issue is whether on the particular facts of this case, the appellant is a fit and proper person to hold an MDI licence despite his admitted behaviour. 83 It is an important consideration that the relevant events in 2021 and 2022 occurred against the backdrop of the more serious incident in 2018. Having experienced police involvement, and been punished by a licence suspension, the 45 Section 35 Book of Documents filed in SACAT proceedings at 150-156. 46 Ibid at 154. 47 [2023] SACAT 4. -- 18 of 29 -- [2025] SASC 83 McDonald J 17 appellant could have been under no misapprehension about the inappropriateness of sexualised comments being made during driving lessons, as well as the embarrassment and discomfort it had the potential to cause. 84 Importantly, in the aftermath of that conduct, the appellant acknowledged his poor behaviour, claimed to have been remorseful and that he had learned from the experience, and said it would never happen again. 85 However, it did. Less than three years later, during his lessons with Ms B. Whilst it may be said that the words spoken to Ms B were less offensive than what was said in 2018, there was an additional dimension to the appellant’s misconduct in that it involved physical contact and an intrusion into Ms B’s personal space. The impact of such behaviour would have been all the more acute because of the close confines in which she was required to engage in lessons with the appellant. 86 Sometime between 5 May 2021 and 9 February 2022, Ms B reported the appellant’s conduct to the police.48 87 The appellant was aware that the report had been made. On 9 February 2022, the appellant was put on notice in writing, that the Registrar was considering whether to cancel or suspend his licence. By March 2022, the appellant was aware that the situation was so serious that he had instructed a solicitor to act on his behalf, to make representations to the Registrar. 88 In such circumstances, it would be anticipated that the appellant would have ensured that his conduct as a driving instructor was beyond reproach. He was well and truly on notice that he was under scrutiny. However, even in those circumstances, he again behaved inappropriately and unprofessionally toward another vulnerable female. 89 It is in that context that the character references need to be considered; whilst of some weight they do little to counterbalance the appellant’s repeated misjudgement and inappropriate conduct. It is of note, that one of the authors of the references acknowledges that others may find the appellant’s “humour odd or peculiar”.49 90 In all of the circumstances, it was open to the Tribunal to find that the appellant was guilty of conduct making him unfit to hold an MDI licence and therefore that he was not a fit and proper person to hold such a licence. 48 There is no evidence before me of the date upon which this complaint was made, however it must have been between the final driving lesson on 5 May 2021 and the Registrar writing to advise the appellant of the complaint on 9 February 2022. 49 Section 35 Book of Documents filed in SACAT proceedings at 154. -- 19 of 29 -- [2025] SASC 83 McDonald J 18 Ground 4 – The Tribunal erred in failing to reconsider the whole of the evidence as at the date of the decision by way of rehearing, as required by s 34(3) of the South Australian Civil and Administrative Tribunal Act 2013 (SA). Ground 5 – The Tribunal failed to have regard to a material consideration, namely Dr Lim’s opinions regarding the appellant’s prospects of rehabilitation, including that the appellant is no more at risk of acting in a harmful manner to minors and the general public than the average person on the streets 91 As there is considerable overlap between grounds 4 and 5, it is convenient to deal with them together. 92 With these grounds, the focus shifts from the nature of the appellant’s prior conduct, to his prospects moving into the future. Central to both grounds are the reports of Dr Lim. 93 In ground 4, the appellant complains that the Tribunal did not have regard to the whole of the evidence, as at the date of the decision of the rehearing. That conclusion is not borne out by a close analysis of the Tribunal’s reasons. The approach adopted by the Tribunal was to first consider whether the appellant’s conduct justified the Registrar cancelling the appellant’s MDI licence, before embarking on the wider enquiry of the appellant’s current circumstances. In particular, the Tribunal took the following into consideration: • The six character references. • The two reports from Dr Lim. • The absence of any criminal record. • The absence of any issues about the appellant’s honesty. • The absence of any complaint about the appellant’s skill or technical ability. • The absence of any other complaints about the appellant in a career of almost 17 years. • The appellant’s offer to have ongoing counselling or coaching as suggested by Dr Lim. • The alternative of conditions on the appellant’s MDI licence. • The fact that between the time that Ms B had made the complaint and the licence cancellation on 19 May 2023, there had been no further complaints about the appellant’s conduct. -- 20 of 29 -- [2025] SASC 83 McDonald J 19 94 In the Tribunal’s reasons it was made plain that the question of fairness and propriety was to be determined at the time that the decision was made in that jurisdiction, as opposed to the time that the Registrar made the earlier decision. The appellant has identified no relevant circumstances that were not expressly dealt with in the Tribunal’s reasons. 95 The reports prepared by Dr Lim were clearly an important part of the appellant’s case. This is reflected in the frequency and the detail in which they were referred to in the Tribunal’s Reasons. 96 In the context of discussing the appellant’s submissions, the Tribunal set out the salient features of Dr Lim’s reports. These included: • The appellant is not a “sexual predator”, nor did he have a severe personality disorder. • The appellant had no sexual interest in the complainants. • There was no appreciable risk that he would commit any sexual offence against his driving students (although she conceded that the concept of zero risk does not exist). • There were “clearly many aspects” of unprofessional, inappropriate and problematic behaviour in the appellant’s conduct, and that he had relied on a “one size fits all” script in approaching his instruction of young people. • The appellant’s conduct was “not ill intentioned or driven by sinister motivations”. • That the appellant had developed good insight, and greater awareness, and had made changes to his teaching style. • Dr Lim proposed that the appellant should have “psychoeducation” or cultural awareness training, and professional counselling or coaching while he held an MDI licence. • The appellant had been assisted through the counselling sessions with Dr Lim to appreciate the inappropriateness of his teaching methods. 97 The Tribunal observed however, that there were shortcomings in, or limitations to, the reports of Dr Lim. The first was that Dr Lim did not appear to address the complaint of touching the students or invading their personal space without warning or consent, despite this being a feature of both of the latter complaints. 98 The second limitation was that whilst Dr Lim addressed the issue of whether the appellant was likely to commit an offence against one of his students, that was -- 21 of 29 -- [2025] SASC 83 McDonald J 20 a very different question to one of whether the appellant is a fit and proper person to hold an MDI licence. Clearly, the bar set for a determination of whether a person is “fit and proper” is not the same as the likelihood of that person committing an offence. 99 In addition, the Tribunal noted that there was no evidence that the appellant continued, or intends to continue his treatment with Dr Lim or anyone else.50 100 Contrary to the complaint in ground 5, based on the above, it cannot be said that the Tribunal failed to have regard to Dr Lim’s opinion regarding the appellant’s prospects of rehabilitation. The Tribunal gave detailed consideration to the content of the reports, and correctly identified their limitations regarding the question that the Tribunal was required to determine. 101 There is no merit to ground 4 or 5. Ground 6 – The Tribunal failed to have regard to a material consideration, namely the availability of possible sanctions other than cancellation, such as a limited suspension or the imposition of conditions upon the appellant’s MDI licence 102 This ground makes a complaint about the failure of the Tribunal to have regard to alternative disciplinary measures namely, the imposition of conditions on the appellant’s MDI licence or a suspension of the licence for a limited period. As different considerations apply, I will deal with each option separately. The imposition of conditions on the appellant’s MDI licence 103 On 23 January 2023, the appellant’s solicitor wrote to the Registrar suggesting that any concerns about the appellant could be met by the imposition of conditions on his MDI licence. The conditions that were suggested were:51 34.1 Continue to engage in regular professional counselling, with an appropriately qualified counsellor; 34.2 Undertake any further education programs or cultural awareness training as the Registrar may deem appropriate; and/or 34.3 Record all of his lesson with students on a computer hard drive and provide copies of those recordings to the Registrar upon request so that the Registrar can be satisfied that he is communicating with his students in an appropriate way. 104 In the Registrar’s reasons, specific consideration was given to the imposition of the appellant’s suggested conditions, as an alternative to the cancellation of the licence. 50 When the topic of whether the appellant had received any further treatment or education to date was raised during the proceedings in this Court, counsel for the appellant advised that given his inability to work as a MDI, the appellant did not have the financial means to do so. 51 Section 35 Book of Documents filed in SACAT proceedings at 133-134. -- 22 of 29 -- [2025] SASC 83 McDonald J 21 105 In relation to the suggestion of psychoeducation and professional coaching or counselling, the Registrar said the following:52 I find this recommendation misses the point. My concern is with the safety and protection the public, including children, undertaking driving tuition with Mr Mikolaj. The point is not that Mikolaj avoids another complaint, rather it is that he behaves in an appropriate manner that does not cause an unacceptable risk to the wellbeing of the prospective students or the reputation of the driving training industry. I have to consider if the public safety and the reputation of the driver training industry is proper served by allowing Mr Mikolaj to remain in the industry as a licenced MDI. I don’t think that undertaking ongoing training and counselling provides sufficient protection nor does it meet public expectation that people who have demonstrated these behaviours should not be in such positions. 106 The Registrar was also not satisfied that the suggested education programs were a means by which to ameliorate concerns about the risk that the appellant posed. The Registrar noted that in the face of such a recommendation, the appellant had done nothing to follow up or take up such programs, albeit that there had been a significant passage of time since the allegations were made and Dr Lim’s recommendation for such intervention. 107 Finally, the Registrar was also not satisfied, given the seriousness of the appellant’s behaviour, and community expectations about the conduct of someone holding an MDI licence, that it would “be in the public or driving training industry interest to allow him to return to the driving training industry with or without a camera”. 108 Upon rehearing before the Tribunal, consideration was also given to the availability of possible alternative sanctions, in the form of conditions on the appellant’s MDI licence. 109 At the outset of the Tribunal’s reasons, it was identified that the remedy sought by the appellant was to have the cancellation of his MDI licence set aside or alternatively, that his licence be restored with conditions.53 Further, that he was prepared to accept whatever conditions the Tribunal imposed. 110 During submissions before the Tribunal, the respondent raised a number of practical issues surrounding the imposition of the proposed conditions on the appellant’s MDI licence. The respondent contended that to impose a condition requiring the recording of all driving lessons would present a significant burden for the Registrar and his staff. For risk management purposes, it would include a significant administrative burden on the Registrar’s staff in checking that the conditions imposed were being met; the videos of the appellant’s driving lesson would have to be periodically uploaded and viewed. In addition, the respondent advised the Tribunal that the appellant had already commenced the practice of 52 Ibid at 173-175. 53 Tribunal’s Reasons at [20] and [22]. -- 23 of 29 -- [2025] SASC 83 McDonald J 22 videotaping his lessons in 2021, at the time that Ms B had her lessons, with the camera apparently having no deterrent effect. 111 At the conclusion of the reasons, the Tribunal expressly considered the submission that as a result of the applicant’s counselling with Dr Lim, he had “changed” and he now understood the nature and problems with his conduct, such that with ongoing psychological support, he is a fit and proper person to hold an MDI licence. 112 The Tribunal rejected that submission. It was noted that there was no evidence that the appellant continued, or intended to continue his treatment with Dr Lim or anyone else. In addition, it was observed that the appellant’s history did not provide any support for the suggestion that the appellant was able to change his behaviour. 113 Taking those matters into account, the Tribunal determined that the Registrar’s decision should be affirmed, and the appellant’s MDI licence should be cancelled. In doing so, the suggestion that any risk to the community could be ameliorated by the imposition of conditions on the appellant’s MDI licence was rejected. 114 Having made that determination, the Tribunal gave consideration to the submission made by the appellant, that the Tribunal could proceed to reissue the licence with conditions pursuant to s 98A(2aa) of the Motor Vehicles Act. That is, as an alternative to the Tribunal making a finding that the decision made by the Registrar was not the preferable and correct decision, it was submitted that the Tribunal could take the course of reissuing the appellant’s licence with conditions attached to the licence. 115 Putting to one side the merits of the submission, the Tribunal identified a legislative impediment to that suggested approach. This was on the basis that it is a fundamental precondition to the issue of a licence under the Motor Vehicles Act as set out in s 98A, and s 98A(2)(c), that the Registrar is satisfied that an applicant is a fit and proper person to hold an instructor’s licence. The Tribunal expressed the view that it is therefore necessary to establish that an applicant is a fit and proper person before any licence can be issued, and it is only if a licence is issued that the Registrar can subject it to conditions pursuant to s 98A(2aa). It follows from that reasoning that absent a determination that a person is fit and proper to hold an MDI licence, it is not open to move on to consider the question of conditions on any licence that may be granted. 116 It was the appellant’s submission that in adopting this approach the Tribunal misconstrued s 98A(2) of the Motor Vehicles Act, and in interpreting the section in this manner, the consequence was that s 98A(2aa) became otiose. It was contended that the fulfilment of the criteria in s 98A(2), including that an applicant “is a fit and proper person to hold an instructor’s licence” means that the Registrar must issue an applicant an MDI licence. The imposition of conditions under -- 24 of 29 -- [2025] SASC 83 McDonald J 23 s 98A(2aa) is however discretionary. On that argument, the Registrar must issue an MDI licence if all conditions under s 98A(2) are fulfilled, but may issue an applicant with an MDI licence when, with the imposition of conditions, the applicant can satisfy the test set out in s 98A(2). 117 It was submitted that in the case of the appellant, the Registrar would be empowered to issue a licence to him on conditions that he engages in cultural awareness programs and intermittent professional coaching or counselling. The appellant contended that it is the inclusion of these additional conditions which would satisfy the Registrar that the appellant is a fit and proper person to hold an instructor’s licence, in circumstances in which additional oversight, education or training might be required. 118 It was the respondent’s submission, that the Tribunal reached the correct conclusion in finding that s 98A(2) of the Motor Vehicles Act requires the Registrar to be satisfied that the applicant for an MDI licence is a fit and proper person to hold an instructor’s licence, prior to being able to impose conditions on the licence. 119 It was contended by the respondent that in circumstances in which an applicant is found to not be a fit and proper person to hold an instructor’s licence, that any perceived short fall in the fit and proper person test cannot be made good by way of conditions imposed pursuant to s 98A(2aa) of the Motor Vehicles Act. The respondent submitted that in some circumstances conditions may be appropriate to address concerns that fall short of an applicant failing to be a fit and proper person to hold an MDI licence. 120 There is considerable force in the respondent’s argument. The determination that a person is a fit and proper person to hold an MDI licence is an essential precondition to the issue of such a licence. The legislation requires that before an MDI licence is issued the applicant must demonstrate driving experience, the skills necessary to teach others to drive and that they are a fit and proper person to undertake this particular role. This three-pronged criteria is so critical to the role of a driving instructor, that it is unlikely that Parliament would have intended that it could be met by the imposition of conditions. 121 In my view, the Tribunal was correct in concluding that it was not open to consider the imposition of conditions, until satisfied that the appellant is a fit and proper person, and subsequently that a licence should be reissued. 122 Having said that, there is a more fundamental problem with the suggestion that the Tribunal should have reissued the appellant’s MDI licence with conditions. To have done so would have been entirely inconsistent with the finding that had already been made by the Tribunal, which was taking into account all of the appellant’s current circumstances, including the option of the imposition of conditions, that he was not a fit and proper person to hold an MDI licence. -- 25 of 29 -- [2025] SASC 83 McDonald J 24 123 In those circumstances, to suggest that the Tribunal should reissue the appellant’s licence with conditions would be completely at odds with the findings that had already been made. A licence suspension 124 The appellant had previously had his MDI licence suspended for three months54 as a consequence of the 2018 complaint. No doubt, at that time, it was anticipated that such a suspension would be sufficient to bring home to the appellant the seriousness of his conduct, and act to deter him from engaging in further inappropriate behaviour in the future. It clearly did not have that effect. 125 On 12 May 2023, the Registrar advised the appellant of the intention to cancel his MDI licence pursuant to s 98A(7) of the Motor Vehicles Act. His licence was cancelled on 19 May 2023. Since that time the appellant has been without an MDI licence. 126 The decision of the Tribunal was handed down on 15 March 2024. By that time the appellant had been without his MDI licence for approximately 10 months. 127 During submissions before the Tribunal, Senior Counsel for the appellant did not make the suggestion that an appropriate alternative penalty was a limited period of suspension. In those circumstances, it is unsurprising that the Tribunal did not specifically refer to the option of a period of suspension. 128 Despite this, the Tribunal clearly had regard to the fact that the appellant had previously been suspended from holding an MDI licence. Also by the time the Tribunal made the decision to cancel the licence, the appellant had effectively been under a suspension for 10 months, and had attended five sessions with Dr Lim.55 In that context, even after what was effectively a 10 month licence suspension with counselling during that period, it remained the view of the Tribunal that the appellant was not a fit and proper person to hold a MDI licence. In such circumstances, it was not reasonably open to the Tribunal to come to the view that the appropriate sanction necessary to protect the community, was a further limited period of licence suspension. 129 Ground 6 establishes no error. Ground 7 – The Tribunal erred and occasioned a denial of procedural fairness in failing to proceed on the factual basis as agreed by the parties 130 In arriving at the original decision, the Registrar accepted that the appellant’s conduct involving both Ms B and Ms Z was not sexually motivated, in that he did not have a sexual interest in the complainants. This finding became the subject of an agreed fact between the parties in the Tribunal. The hearing before the Tribunal 54 The licence suspension was initially for six months however was reduced to three months on an internal review. 55 The dates of these sessions were 10 October 2022, 25 October 2022, 17 January 2023, 19 January 2023 and 29 May 2023. -- 26 of 29 -- [2025] SASC 83 McDonald J 25 proceeded on that basis, with the Tribunal making the express finding that “there was no intention on Mr Mikolaj’s part that these comments or actions were sexualised”.56 131 The impugned passages that are said to be inconsistent with the agreed facts immediately follow that express finding. The paragraphs complained of are the following:57 … it is clear that both complainants (and the young male pupil in 2018) felt very uncomfortable by his comments and conduct. The complainants clearly were also made uncomfortable by Mr Mikolaj’s frequent touching of them, on their hands, head and face, without warning or consent. In my view it is impossible to avoid interpreting the comments and actions in a sexualised manner, even in the circumstances where Mr Mikolaj had no sexual interest in the complainants. It seems very likely that it was the possible sexual interpretation of the comments which Mr Mikolaj thought would engender humour, in his explanation that they represented a poorly judged attempt at humour. Mr Mikolaj’s conduct – the comments and instructions which were capable of being interpreted as sexualised, and touching pupils without their consent – demonstrate poor judgement on his part, and this is acknowledged by him and noted in Dr Lim’s report. Dr Lim in her reports, and Ms Abbey in her submissions, have told the Tribunal this poor judgement has now been redressed by Mr Mikolaj. 132 It is contended by the appellant that these observations are inconsistent with the agreed factual basis upon which the hearing was conducted, which was that the appellant’s conduct was not sexually motivated, but rather, “inappropriate and unprofessional”. It was contended that if that submission is correct, given that the parties proceeded on the basis of the agreed fact, the appellant has been denied procedural fairness. 133 I do not accept that the relevant paragraphs of the Tribunal’s reasons are inconsistent with the agreed factual basis upon which the Registrar made the original determination. The agreed facts focus on the state of mind of the appellant, and the issue of whether he engaged in this conduct for the purposes of sexual gratification. The Tribunal expressly acknowledged that he did not. 134 In the relevant passages of the Tribunal’s reasons, the focus of the Tribunal is twofold; firstly, on the rationale behind the appellant making the comments and, secondly, on the manner in which the comments and accompanying conduct may have been interpreted by the students. 135 As to the former, the appellant justified his conduct and the manner in which he communicated with his students, on the basis that he was endeavouring to engage with them in order to demonstrate correct and safe driving techniques. By deliberately using sexual terminology, the appellant was no doubt endeavouring to be topical or humorous in a provocative fashion. As the Tribunal observed, “[i]t 56 Tribunal’s Reasons at [61]. 57 Ibid at [61]-[62]. In the Tribunal’s Reasons filed with the Notice of Appeal, the sentence reads “that it is impossible to avoid interpreting the comments and actions in a sexualised manner.” -- 27 of 29 -- [2025] SASC 83 McDonald J 26 seems very likely that it was the possible sexual interpretation of the comments which Mr Mikolaj thought would engender humour”.58 It was no doubt for that reason that the appellant suggested that the students “look for their boyfriend” rather than the more innocuous alternative of looking for a parent, friend or grandparent. 136 This finding in no way cuts across the agreed fact that the appellant was not motivated by a sexual purpose. 137 Neither is the fact that the Tribunal found that the comments and instructions “were capable being interpreted as sexualised”, inconsistent with the agreed facts. As I have said, the focus in this passage of the Tribunal’s reasons, is on the state of minds of the students, and the manner in which the appellant’s comments were capable of being interpreted. 138 The appellant has not been denied procedural fairness. 139 There is no merit to ground 7. Ground 1 – The cancellation of the appellant’s MDI licence is unreasonable or plainly unjust 140 Having found that the grounds relating to errors of reasoning have not been made out, it is necessary to consider whether there has been an outcome error. It was contended that even if the Court is not satisfied that any of the process errors that form the basis of appeal grounds 2 to 7 have been established, the combined effect of the above matters relied upon, demonstrates an outcome error. 141 It was submitted that the outcome is so unreasonable or plainly unjust, that there has been a manifest error. In support of this ground the appellant contends that there was no basis upon which it could have been determined that the appellant was not a fit and proper person to hold an MDI licence, at the time of the hearing in the Tribunal and moving into the future. In support of that submission the appellant relies on the following: • The impugned conduct was at the lower end of the spectrum of seriousness of matters of this type. • The appellant’s suitability to hold an MDI licence in every other respect was not in question. • Dr Lim concluded that the conduct comprised of misguided attempts on the appellant’s behalf to develop rapport with his students, enhance their capacity to learn and retain information, and was not ill intended or driven by sinister motives. 58 Ibid at [61]. -- 28 of 29 -- [2025] SASC 83 McDonald J 27 • Dr Lim had assessed the appellant as being at no more risk of acting in a harmful manner to minors and the general public than any other person in the community. • Dr Lim’s recommendation that the appellant engage in a cultural awareness program, and intermittent professional coaching or counselling, to avoid another complaint by a student. 142 It was the respondent’s submission that there has been no outcome error, and the totality of the evidence supports the Tribunal’s decision to cancel the appellant’s MDI licence. 143 As I have discussed, none of the complaints made by the appellant in grounds 2 to 7 have identified an error of reasoning. The Tribunal carefully weighed and considered the competing considerations. This Court cannot substitute its evaluation of the relevant considerations for that of the Tribunal, unless having regard to the Tribunal’s specialist knowledge and experience, this Court finds that the order ultimately made is manifestly unreasonable. 144 An error of that kind is not arguable in this case. 145 The appellant has not demonstrated any arguable error of principle, denial of procedural fairness, other vitiating error, or manifest injustice. The appeal therefore must be dismissed. -- 29 of 29 --